Tapper v. Commissioner of Social Security

Filing 18

OPINION and ORDER : Commissioners denial of benefits is REVERSED and this case is REMANDED with instructions to return the matter to the Social Security Administration for further proceeding consistent with this opinion. Signed by Judge Robert L Miller, Jr on 3/30/15. (mc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
NORMAN A. TAPPER, III,
PLAINTIFF,
VS.

CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.

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CAUSE NO. 2:13-CV-304-RLM-JEM

OPINION and ORDER
Plaintiff Norman Tapper seeks judicial review of the final decision of the
Commissioner of Social Security denying his application for Disability
Insurance Benefits under Title II, 42 U.S.C. § 423 et seq., of the Social Security
Act. The court has jurisdiction over this action pursuant to 42 U.S.C. § 405(g).
For the reasons that follow, the court reverses and remands this case to the
Social Security Administration for further proceedings consistent with this
opinion.

I. BACKGROUND
Mr. Tapper filed his initial application for benefits on March 12, 2010
and asserts that he became disabled on January 19, 2010 due to several
physical impairments, most notably coronary artery disease and obesity. His
application for benefits was denied initially, upon reconsideration, and after an
administrative hearing held on June 11, 2012 at which he was represented by

counsel. At that hearing, the administrative law judge heard testimony from
Mr. Tapper and vocational expert Leonard Fisher. In the written decision that
followed, the ALJ found that Mr. Tapper’s coronary artery disease and obesity
were severe impairments, but didn’t individually or in combination meet or
medically equal the severity of those impairments that are considered
conclusively disabling. The ALJ found that Mr. Tapper could perform his past
work because that work didn’t require the performance of activities precluded
by his residual functional capacity. As a result, the ALJ concluded Mr. Tapper
wasn’t disabled within the meaning of the Act. See 20 C.F.R. § 416.920(f)
(“Your impairment(s) must prevent you from doing your past relevant work.”).
The Appeals Council denied review of the ALJ’s decision, making the decision
the final determination of the Commissioner. 20 C.F.R. § 416.1481. The parties
agree the matter is properly before this court.

II. STANDARD OF REVIEW
The court must affirm the Commissioner’s determination if it is
supported by substantial evidence, 42 U.S.C. § 405(g); Scott v. Astrue, 647
F.3d 734, 739 (7th Cir. 2011), which means “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971); see also Jones v. Astrue, 623
F.3d 1155, 1160 (7th Cir. 2010). The court can’t re-weigh the evidence, make
independent findings of fact, decide questions of credibility, or substitute its
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own judgment for that of the Commissioner, Simila v. Astrue, 573 F.3d 503,
513 (7th Cir. 2009), but in reviewing the ALJ’s conclusions, “[t]he court will
conduct a critical review of the evidence, considering both the evidence that
supports, as well as the evidence that detracts from, the Commissioner’s
decision, and the decision cannot stand if it lacks evidentiary support or an
adequate discussion of the issues.” Briscoe v. Barnhart, 425 F.3d 345, 351
(7th Cir. 2005). The ALJ isn’t required “to address every piece of evidence or
testimony presented, but must provide a ‘logical bridge’ between the evidence
and the conclusions so that [the court] can assess the validity of the agency’s
ultimate findings and afford the claimant meaningful judicial review.” Jones v.
Astrue, 623 F.3d 1155, 1160 (7th Cir. 2010).

III. DISCUSSION
The Social Security Administration uses a sequential five-step analysis to
determine if a claimant is disabled. See 20 C.F.R. § 416.920 (evaluation of
disability of adults, in general); see also Craft v. Astrue, 539 F.3d 668, 673674 (7th Cir. 2008). The first step considers whether the claimant is engaging
in substantial gainful activity. The second step evaluates whether an alleged
physical or mental impairment is severe, medically determinable, and meets a
durational requirement. The third step compares the impairment to a list of
impairments that the regulations treat as conclusively disabling. If the
impairment meets or equals one of the listed impairments, the applicant is
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considered disabled; if the impairment doesn’t meet or equal a listed
impairment, the evaluation continues. The fourth step assesses a claimant’s
residual functional capacity and ability to engage in past relevant work. A
claimant who can engage in past relevant work isn’t disabled. The fifth step
assesses the claimant’s RFC, as well as his age, education, and work
experience to determine whether the claimant can engage in other work. A
claimant who can engage in other work isn’t disabled.
Using the standard five-step evaluation for determining disability, the
ALJ found that although Mr. Tapper suffered from coronary artery disease and
obesity, those severe impairments didn’t meet or medically equal the criteria of
an impairment listed in Appendix 1 of the SSI Regulations (20 C.F.R. Part 404,
Subpart P, Appx. 1). The ALJ then found that Mr. Tapper had the residual
functional capacity to perform a full range of work at all exertional levels and
with the following nonexertional limitations: limited to occasionally climbing
ramps and stairs, balancing, stooping, kneeling, crouching, and crawling;
prohibited from climbing ladders, ropes, or scaffolds; and prohibited from
working around unprotected heights or hazardous moving machinery. With
this RFC, the ALJ concluded Mr. Tapper could perform his past work as an
account executive, auto sales representative, or electronic technician and so
wasn’t disabled.
On appeal, Mr. Tapper challenges the ALJ’s determination at step four
that he had the residual functional capacity to perform a full range of work at
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all exertional levels. He argues that the record doesn’t support the RFC, that
the ALJ didn’t properly consider the opinion evidence, and that the ALJ
improperly discredited his testimony.

A. Step Four
At the fourth step of the ALJ’s analysis, the ALJ must determine the
claimant’s residual functional capacity and whether, with the appropriate RFC,
the claimant can engage in his or her past relevant work. The ALJ considers
the extent to which the claimant’s symptoms are consistent with the evidence,
20 C.F.R. § 404.1529(a), and considers the medical opinion evidence. 20 C.F.R.
§ 404.1527(b). The ALJ must determine whether the underlying medically
determinable physical or mental impairment could reasonably be expected to
produce the claimant’s pain or symptoms. 20 C.F.R. § 404.1529(b). If so, the
ALJ then evaluates the intensity, persistence and limiting effects of the
symptoms to determine the extent to which they limit the claimant’s
functioning. 20 C.F.R. § 404.1529(c). If statements are made to this effect that
aren’t substantiated by objective medical evidence, the ALJ must make a
credibility finding based on the entire case record. SSR 96-7p (July 2, 1996).
To begin with, the ALJ discussed Mr. Tapper’s testimony: Mr. Tapper had
shortness of breath if he walked 100 feet; he sometimes experienced achiness
when sitting; he had tightness in his chest one to two times a week; he could
stand for only 15-20 minutes; he had trouble standing; and he had aches in
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his legs. The ALJ concluded that Mr. Tapper’s medically determinable
impairments could reasonably be expected to cause his symptoms, but his
testimony as to his symptoms’ intensity, persistence, and limiting effects wasn’t
credible to the extent it was inconsistent with the ALJ’s RFC assessment. Mr.
Tapper points out that the ALJ used the credibility boilerplate language that
the court of appeals has criticized. The court cautions the ALJ against using
this relatively meaningless credibility language. See Garcia v. Colvin, 741 F.3d
758, 762 (7th Cir. 2013) (ALJ used “boilerplate cart-before-the-horse credibility
formula”); Bjornson v. Astrue, 671 F.3d 640, 645 (7th Cir. 2012) (quoting
Hardman v. Barnhart, 362 F.3d 676, 679 (10th Cir. 2004)) (“Such boilerplate
language fails to inform us in a meaningful, reviewable way of the specific
evidence the ALJ considered in determining that claimant’s complaints were
not credible.”). Because the ALJ further examined Mr. Tapper’s testimony, the
use of the boilerplate language isn’t dispositive of the credibility issue.
Mr. Tapper’s overarching complaint is that the ALJ didn’t base his RFC
assessment on the objective medical evidence or the medical opinions of record.
The Commissioner argues that substantial evidence supports the ALJ’s
decision. “An ALJ must evaluate all relevant evidence when determining an
applicant’s RFC, including evidence of impairments that are not severe.” Arnett
v. Astrue, 676 F.3d 586, 591 (7th Cir. 2012) (citing 20 C.F.R. § 404.1545(a)).
The court will uphold the ALJ’s decision as to the appropriate RFC “if the
evidence supports the decision and the ALJ explains his analysis of the
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evidence with enough detail and clarity to permit meaningful review. Id. at 591592. The court finds the ALJ articulated his reasoning and cited evidence from
the record to support his conclusion. Nevertheless, the ALJ glossed over and
ignored relevant evidence, leaving the court unable to find that the decision is
supported by substantial evidence. The ALJ also didn’t provide a logical bridge
between the evidence, including the medical opinions, and his conclusion that
Mr. Tapper had no exertional limitations.

B. Objective Medical Evidence
Initially, the ALJ noted Mr. Tapper’s medical history of coronary artery
disease with coronary artery bypass graft surgery with the placement of stents.
He observed the surgery occurred many years before (2007) Mr. Tapper’s
alleged onset date in January 2010. The ALJ then discussed Mr. Tapper’s
treatment notes from 2009, 2010, and 2011. He highlighted that Mr. Tapper’s
coronary artery disease was considered “asymptomatic” and Mr. Tapper
reported “doing well” (January 2010) and “feeling well” (April 2011). The ALJ
characterized

Mr.

Tapper’s

treatment

as

generally

routine,

with

no

hospitalizations and only one cardiac diagnostic test.
The ALJ then examined notes from Mr. Tapper’s appointments with his
cardiologist, Clifford J. Kavinsky, M.D., Ph.D., starting with the April 2011
appointment. The ALJ highlighted that Mr. Tapper reported chest pain only
when he coughed, which was the result of bronchitis, no palpitations, no
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syncope, no dizziness, and intermittent pain in his bilateral calves when he
walked. His physical examination revealed a normal cardiovascular system, full
range of motion, full muscle strength, and a normal musculoskeletal system,
except some reduced peripheral pulses. Mr. Tapper reported that he could walk
one to two blocks without getting short of breath, which the ALJ noted was
inconsistent with his hearing testimony.
Next, the ALJ discussed Mr. Tapper’s October 2011 appointment with
Dr. Kavinsky, at which Mr. Tapper reported that he felt well, had no shortness
of breath, no chest pain, no syncope or presyncope, and no lower extremity
edema or PND/orthopnea. The ALJ found the results of an EKG and stress test
were normal, but the record only reflects normal results for the EKG. The
stress test for cardiac clearance for gastric bypass surgery, which was ordered
at this appointment, doesn’t seem to have been completed.
The ALJ said the cardiologist’s notes showed no balance issues, either
reported or observed during an appointment, which was inconsistent with Mr.
Tapper’s hearing testimony. The general impression the ALJ drew from Dr.
Kavinsky’s treatment notes was that Mr. Tapper had no reported or recorded
symptoms and this conflicted with his hearing testimony about his limitations.
The ALJ then looked at the report from the June 2010 consultative exam
performed at the State Agency’s request. During the exam, the ALJ noted, Mr.
Tapper had a regular heart rate and rhythm, was able to ambulate and get on
and off the examination table easily, showed no signs of fatigue or distress, and
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didn’t demonstrate any pain behavior with ambulation. The ALJ found the
exam report was consistent with Mr. Tapper’s treatment record with his
cardiologist and he gave the report great weight (more on this later). The ALJ
stated the consultative examiner opined that Mr. Tapper had no restrictions
with respect to work-related activities.
Based on this objective medical evidence, the ALJ concluded that Mr.
Tapper appeared to be doing well with no shortness of breath or chest pains,
unremarkable diagnostic testing, and routine treatment. As a result, the ALJ
found that Mr. Tapper had no exertional limitations. To account for Mr.
Tapper’s “complaints,” his cardiac history, and an echocardiogram report, the
ALJ placed restrictions on Mr. Tapper’s postural abilities and his environment.
The ALJ also briefly discussed Mr. Tapper’s reported medication side effects,1
daily living activities testimony,2 and work history,3 before moving on to the
medical opinion evidence, as discussed below. The ALJ made the exertional
limitation conclusion before reaching the other evidence. Perhaps this

1

The ALJ considered Mr. Tapper’s testimony about the side effects of his medications,
including severe headaches from Nitroglycerin and upset stomach, itchiness, and hot flashes.
The ALJ determined these side effects weren’t well documented in the medical record and noted
in December 2011, Mr. Tapper denied any side effects from his medications.
2 The ALJ distinguished Mr. Tapper’s testimony about his daily living activities (watch
television, eat, nap, unable to shop without leaning on a cart) from the medical record that
showed no indication he had trouble walking, with muscle strength, or with balance and his
report during the consultative exam that he was able to conduct daily living activities.

The ALJ concluded Mr. Tapper chose to retire (and draw Social Security retirement
payments) and wasn’t force to retire due to his impairments because, the ALJ decided, the
medical evidence from 2010 through 2012 was relatively benign with sporadic cardiac
complaints.
3

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conclusion, tucked in the middle of the analysis, was simply a bookmark, but it
leads the court to question whether the ALJ determined the limitations (or lack
thereof) and then filled in the supporting evidence accordingly. At this point,
the ALJ had little evidence of the specific limitations that are appropriate for a
person with coronary artery disease.
As almost an afterthought, the ALJ noted the record reflected that Mr.
Tapper was obese. The ALJ “took the claimant’s obesity into account when
limiting him to nonexertional restrictions only.” This is the extent of the ALJ’s
discussion of Mr. Tapper’s obesity at step four. Mr. Tapper argues the ALJ also
had to: (1) consider his obesity when determining the appropriate exertional
restrictions; (2) consider the combined impact of his obesity with his other
severe impairment, coronary artery disease; and (3) explain how the
nonexertional restrictions related to his obesity. The court agrees. The ALJ
found Mr. Tapper’s obesity to be a severe impairment. If the ALJ thought Mr.
Tapper’s obesity didn’t limit his exertional abilities, he needed to explain why.
Arnett v. Astrue, 676 F.3d 586, 593 (7th Cir. 2012) (“If the ALJ thought [the
claimant’s] obesity has not resulted in limitations on [his] ability to work, he
should have explained how he reached that conclusion.”). The ALJ also had to
consider the impact of Mr. Tapper’s obesity in combination with his coronary
artery disease, and perhaps Mr. Tapper’s other non-severe impairments. Id.
(“An ALJ must factor in obesity when determining the aggregate impact of an
applicant’s impairments.”). Finally, the ALJ needed to explain how the evidence
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supported his conclusion that Mr. Tapper’s obesity limited his nonexertional
abilities as incorporated by the ALJ in the RFC. Id. (ALJ “must explain its
decision such that it may be meaningfully reviewed.”).
Mr. Tapper also argues the ALJ didn’t consider: the effects of his fatigue
due to his sleep apnea and periodic limb movement disorder; how the stress of
his prior work exacerbated his heart condition by causing chest pain and
tightness; and the effects of the neuropathy in his fingers. Earlier in the
decision, the ALJ determined these conditions weren’t severe and didn’t impose
more than “minimal, if any, limitation upon the claimant’s ability to perform
basic work activities. Nevertheless, . . . the undersigned considered all
medically determinable impairments in combination when . . . assessing the
claimant’s residual functional capacity.” This vague statement doesn’t allow the
court to meaningfully review how the ALJ considered these non-severe
impairments in his RFC determination. Arnett v. Astrue, 676 F.3d 586, 591592 (7th Cir. 2012). All three conditions could potentially affect Mr. Tapper’s
work related abilities, and if the ALJ thought they didn’t limit Mr. Tapper’s
ability to work, the ALJ should have explained how he reached that conclusion.
The ALJ needn’t “mention every snippet of evidence in the record,” but
“he may not ignore entire lines of contrary evidence.” Id. at 592. The ALJ’s
failure to mention a severe impairment and several non-severe impairments in
the RFC analysis suggests the ALJ’s mode of analysis produced an RFC
conclusion based only on selective evidence in the record. See e.g., Scrogham v.
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Colvin, 765 F.3d 685, 698 (7th Cir. 2014) (“Specifically, the ALJ identified
pieces of evidence in the record that supported her conclusion that [the
claimant] was not disabled, but she ignored related evidence that undermined
her conclusion. This ‘sound-bite’ approach to record evaluation is an
impermissible methodology for evaluating the evidence.”). The ALJ’s failure to
consider the work related limitations of Mr. Tapper’s obesity, fatigue, stress,
and neuropathy or to articulate his reasoning for their lack of work related
limitations requires reversal, but to guide the ALJ towards a more complete
RFC analysis upon remand, the court continues its review.

C. Medical Opinion Evidence
Mr. Tapper argues the ALJ didn’t evaluate the opinion evidence properly,
and, as a result, the RFC isn’t supported by the record. The Commissioner
argues that the ALJ’s RFC determination doesn’t have to be based on a specific
medical opinion of record, and the RFC determination is reserved for the ALJ.
The ALJ considered medical opinions from Mr. Tapper’s treating cardiologist,
the consultative physician, and a State Agency medical consultant.
The ALJ gave little weight to the opinion of Mr. Tapper’s cardiologist, Dr.
Kavinsky, who performed Mr. Tapper’s heart surgery in 2007 and has been his
treating cardiologist ever since.4 This “opinion” is found in an “Exercise

Mr. Tapper says the ALJ didn’t analyze the factors required under 20 C.F.R. §
404.1527(c). The ALJ did, however, review the factors indirectly in his analysis of the doctor’s
opinion, albeit perhaps incorrectly, when he: acknowledged the length of the treatment
4

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Treadmill ECG Authorization” form that Dr. Kavinsky filled out at the Disability
Determination Bureau’s request in August 2010. The form asked, “Are there
any contraindications restricting the claimant from undergoing an exercise
treadmill ECG?” Dr. Kavinsky answered, “Yes, pt cannot tolerate[ ] any
exercise/treadmill. CAD is disabling.” The form asked, “Would the attending
medical source be willing to perform an exercise treadmill ECG?” Dr. Kavinsky
answered, “No, b/c he has severe disabling coronary disease.” In response to
similar questions posed by the Disability Determination Bureau, in September
2010, on the “Attending Physician’s Statement – Advisability & Availability of
Exercise Test” form, Dr. Kavinsky again indicated, “pts morbid obesity,
disabling coronary artery disease” were contraindications that restricted Mr.
Tapper from undergoing an exercise study and again declined to perform the
exercise study “because his coronary artery disease has severely disabled him
from being able to complete such exam.”
The ALJ recognized that Dr. Kavinsky opined that Mr. Tapper had
morbid obesity and coronary artery disease that was disabling and that Mr.
Tapper wasn’t able to tolerate a stress test. But, the ALJ found, and the
Commissioner agrees, that Dr. Kavinsky’s opinion conflicted with the
cardiologist’s own records. According to the ALJ, Dr. Kavinsky’s records
showed that after the surgery, Mr. Tapper’s coronary heart disease was stable,

relationship and that the doctor was a cardiologist; pointed out the length of time between
examinations; found the treatment to be routine; and found the doctor’s opinion to be
inconsistent with his own treatment notes.

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and in October 2011, Mr. Tapper requested a cardiac work-up pre-gastric
bypass surgery that included a stress test. The ALJ said the record didn’t
reflect that Mr. Tapper wasn’t able to participate in that test. The ALJ also
noted a finding of disability is reserved for the Commissioner.
Mr. Tapper says the ALJ’s reasoning isn’t supported by the record and
mischaracterizes Dr. Kavinsky’s treatment notes. The court agrees. Dr.
Kavinsky offered his “opinion” that Mr. Tapper’s coronary artery disease was
disabling in response to the question of whether he was willing to authorize
and administer an exercise treadmill ECG for Mr. Tapper. He declined to do so
due to his patient’s condition. The ALJ disregarded the conclusion of Mr.
Tapper’s treating cardiologist as inconsistent with “stable” coronary artery
disease. Neither the ALJ, nor this court, is a medical professional or able to
conclude whether Mr. Tapper’s medical condition was up to an exercise
treadmill ECG in 2010 – the context in which Dr. Kavinsky opined that Mr.
Tapper was “disabled.” See Hopgood ex rel. L.G. v. Astrue, 578 F.3d 696, 702
(7th Cir. 2009) (ALJ’s determinations must be based on testimony and medical
evidence in the record and not the ALJ’s own independent medical findings.).
The ALJ also emphasized that no evidence showed that a stress test wasn’t
performed at a later date in 2011. The record also contains no evidence that a
stress test was, in fact, performed. Mr. Tapper says the stress test authorized
by Dr. Kavinsky in October 2011 was an “Exercise Spect MPI with Nuclear
Imaging” that uses a medication instead of exercise to induce the stress. The
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ALJ isn’t a medical professional and can’t know the physical limitations of
“stable” coronary heart disease. For that, he needed to rely on the medical
opinions in the record. That Mr. Tapper’s cardiologist wasn’t willing to
authorize or perform a treadmill stress test seriously undermines the ALJ’s
determination that Mr. Tapper had no exertional limitations. See Scrogham v.
Colvin, 765 F.3d 685, 696 (7th Cir. 2014) (ALJ erred by ignoring evidence in
the record which caused ALJ to discredit opinions of claimant’s treating
physicians).
Mr. Tapper claims the ALJ’s concluding comment that a finding of
disability is reserved for the Commissioner is legal error. Mr. Tapper takes the
legal implications of this statement a bit too far. “[W]hether the applicant is
sufficiently disabled to qualify for social security disability benefits is a
question of law that can’t be answered by a physician. But the answer to the
question depends on the applicant’s physical and mental ability to work full
time, and that is something to which medical testimony is relevant and if
presented can’t be ignored.” Garcia v. Colvin, 741 F.3d 758, 760 (7th Cir.
2013). So, the ALJ wasn’t bound by Dr. Kavinsky’s disability conclusion, but
he had to consider Dr. Kavinsky’s opinion. The court can’t say the ALJ did
anything but try to explain why he didn’t credit the cardiologist’s opinion.
The ALJ also considered the opinion of the physician who performed Mr.
Tapper’s consultative exam. The ALJ interpreted the doctor’s opinion to say,
“the claimant has no restrictions with respect to work-related activities.” The
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doctor’s full conclusion was, “Despite impairments with respect to work-related
activities the claimant has the ability to sit, stand, walk, handle objects, hear,
see and speak.” The opinion is relatively unhelpful when considering the extent
of Mr. Tapper’s exertional abilities.
Finally, the ALJ considered the December 2010 opinion of the State
Agency medical consultant. That doctor opined that Mr. Tapper was capable of
less than the full range of light work with the following restrictions:
lift/carry/push/pull up to ten pounds frequently and twenty pounds
occasionally; sit a total of six hours in an eight hour workday; and stand/walk
a total of six hours in an eight hour day. The ALJ gave this opinion great
weight, but modified it to reflect no exertional restrictions due to what the ALJ
characterized as Mr. Tapper’s relatively routine, conservative treatment, his
denial of shortness of breath, chest pains, and syncope, and the relatively
unremarkable diagnostic testing. Mr. Tapper says the ALJ’s decision to alter
the restrictions after giving this opinion great weight is contradictory and led to
the ALJ making medical determinations. The court agrees, in part. As the
Commissioner argues, the ALJ is to make the ultimate RFC determination
based on all of the evidence – both medical and non-medical. The ALJ’s reasons
for modifying the consultative doctor’s recommended restrictions are medical.
The consultative doctor presumably would have considered the “relatively
routine, conservative treatment” of Mr. Tapper’s coronary artery disease and
“his continuous denial of shortness of breath, chest pains, and syncope” when
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the doctor opined that Mr. Tapper should be restricted to light work. The ALJ’s
decision to make his own medical determinations and ignore the recommended
restrictions of the consultative doctor isn’t supported by the record.
The ALJ erroneously disregarded the medical opinion of Mr. Tapper’s
treating cardiologist that he wouldn’t authorize an exercise treadmill ECG for
his patient as inconsistent with the doctor’s treatment notes, exaggerated the
usefulness of the consultative examiner’s opinion, and made medical
conclusions

when

modifying

the

consultative

doctor’s

recommended

limitations. As a result, the ALJ’s RFC assessment isn’t supported by the
medical opinions of record, and, in turn, the ALJ doesn’t offer a logical bridge
between the opinion evidence and his conclusion that Mr. Tapper has no
exertional limitations.
In an attempt to salvage the decision, the Commissioner argues the
vocational expert testified that Mr. Tapper could perform his past work even if
he were limited to light work, so the ALJ’s failure to limit Mr. Tapper to light
work, as recommended by the consultative doctor, is harmless. The court can’t
make this analytical leap with the Commissioner. Too much evidence was
overlooked and ignored by the ALJ’s analysis to conclude the vocational
expert’s testimony made the ALJ’s erroneous RFC assessment meaningless.

D. Credibility

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Finally, Mr. Tapper argues the ALJ didn’t properly assess his credibility.
First, he says the ALJ can’t disregard subjective complaints of disabling pain.
That’s an accurate statement of the law, see Moss v. Astrue, 555 F.3d 556, 561
(7th Cir. 2009) (“ALJ cannot disregard subjective complaints of disabling pain
just because a determinable basis for pain of that intensity does not stand out
in the medical record.”), but Mr. Tapper doesn’t point to any testimony about
disabling pain that the ALJ ignored. Next, Mr. Tapper says the ALJ didn’t
address evidence favorable to him. The ALJ compared Mr. Tapper’s testimony
to his cardiologist’s treatment notes. In April 2011, Mr. Tapper reported that he
could walk one to two blocks without getting short of breath, which the ALJ
noted was inconsistent with his hearing testimony that he had shortness of
breath if he walked 100 feet. In general, the ALJ said the cardiologist’s notes
showed no balance issues, either reported or observed during an appointment,
which was inconsistent with Mr. Tapper’s hearing testimony that he had
trouble standing. Mr. Tapper doesn’t dispute these two conclusions; instead, he
focuses on the following two issues. The ALJ found Mr. Tapper’s testimony that
he couldn’t shop without leaning on a cart contradicted the medical record,
which showed no indication he had trouble walking. But Mr. Tapper points out
that Dr. Kavinsky documented intermittent pain in Mr. Tapper’s bilateral
calves when he walked. Second, the ALJ noted that at his October 2011
appointment with Dr. Kavinsky, Mr. Tapper denied shortness of breath. Mr.

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Tapper points to an October 2011 appointment with Dr. John Brady at which
he reported shortness of breath with exertion.
The Commissioner argues that no evidence supports Mr. Tapper’s claims
of extreme limitations. Perhaps this is true, but in light of the ALJ’s incomplete
discussion of the objective medical evidence and the opinion evidence, the
court is wary of more omitted evidence, and so, skeptical about the ALJ’s
credibility findings. See e.g., Scrogham v. Colvin, 765 F.3d 685, 698 (7th Cir.
2014) (“As a result of the ALJ’s failure to follow the proper methodology, we
have reason to doubt the accuracy of her credibility determination . . . .”). The
ALJ’s credibility determination won’t be disturbed unless it is patently wrong,
Diaz v. Chater, 55 F.3d 300, 308 (7th Cir. 1995), but the court encourages the
ALJ to further develop his credibility analysis upon remand by considering the
evidence Mr. Tapper has highlighted that supports his testimony.

IV. CONCLUSION
The court doesn’t decide that Mr. Tapper is entitled to benefits. He might
have exaggerated his limitations, as the ALJ found, and perhaps a more indepth review of the evidence will show that he can perform some work, and
even his past work. But the court can’t uphold the ALJ’s decision that Mr.
Tapper had no exertional limitations due to the flaws in the ALJ’s RFC
analysis. See Scrogham v. Colvin, 765 F.3d 685, 701 (7th Cir. 2014) (ALJ’s
decision reversed “because an administrative agency’s decision cannot be
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upheld when the reasoning process employed by the decision maker exhibits
deep logical flaws, even if those flaws might be dissipated by a fuller and more
exact engagement with the facts.”). The ALJ’s decision isn’t supported by
substantial evidence and doesn’t provide a logical bridge between the evidence
and the ALJ’s conclusions. Jones v. Astrue, 623 F.3d 1155, 1160 (7th Cir.
2010). The Commissioner’s denial of benefits is REVERSED and this case is
REMANDED with instructions to return the matter to the Social Security
Administration for further proceeding consistent with this opinion.
SO ORDERED.
ENTERED: March 30, 2015

/s/ Robert L. Miller, Jr.
Judge
United States District Court

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